DO YOU NEED TO APPLY FOR RELIEF FROM SANCTIONS OR AN EXTENSION OF TIME? ANOTHER KEY ISSUE PRACTITIONERS SHOULD BE CERTAIN ABOUT

There was an interesting debate on twitter on Friday evening about whether Mitchell was being cited too widely.  It was reported that, in some cases district judges had rejected the argument that when parties were applying for extension of time this was a “Mitchell” type case. The judge but stated that it was an application for an extension of time. Whether or not a party needs relief from sanctions is a key issue.  This post looks at the rules and the cases.

THE RULES

We are concerned with two rules:

CPR 3.9

CPR 3.9 relates to relief from sanctions.  The wording of the rule itself is important:-

(1)       On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –

(a) for litigation to be conducted efficiently and at proportionate cost; and

(b) to enforce compliance with rules, practice directions and orders.”

The key words here “any sanction imposed for a failure to comply with any rule, practice direction or court order.”

 CPR 3.2

 CPR 3.2 (2) appears to give a more general power.

“(2)     Except where these Rules provide otherwise, the court may –

(a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);”

 THE KEY ISSUE: IS A SANCTION IMPOSED?

The key issue may appear to be whether there is a specific sanction imposed by a rule, practice direction or order.  However the situation is not so simple.

NO SPECIFIC SANCTION IN THE MITCHELL CASE

One key matter  practitioners must bear in mind is that In the Mitchell case itself there was not a clear sanction in place. The Practice Direction that governed defamation cases ordered a party to file a costs budget 7 days before  the first hearing but did not impose any sanction if a party failed to do so. The Master stated:

“All that is missing in Practice Direction 51D is a stipulation as to the nature of any sanction. It is simply left at large to the court, but I consider that professionals have now had ample warning for many months that the court would adopt a strict approach to the interpretation of application and rules and orders and it should come as no surprise that, subject to any powers I have to grant relief from sanctions, the sanction I should impose is that the claimant’s budget will be limited to the court fees. The claimant has the right to apply for relief from sanctions and I will adjourn the costs budgeting hearing, and matters can resume either to deal with any applications supported by evidence or to deal with costs budgeting, or both as appropriate in due course.”

So it is clear that the Master, and the Court of Appeal, felt that the failure to file the costs budget was a CPR 3.9 matter, requiring relief from sanctions, rather than one that fell within CPR 3.2(2).

DURRANT: AN EXPRESS ORDER THAT THE DEFENDANT SERVE EVIDENCE BY A CERTAIN DATE

In Durrant –v- Chief Constable of Avon –v- Somerset  [2013] EWCA Civ 1624

there was a specific order made by the judge.

“Defendant do file and serve any witness statements by 4 pm on 12 March 2013. The Defendant may not rely on any witness evidence other than that of witnesses whose statements have been so served”

The Defendant needed permission to rely on witnesses served later than the 12th March and it was held that this permission needed to be considered under the CPR 3.9 and Mitchell criteria. (As we shall see the order in that case reflects the rules in any event).

 DASS –V- DASS: NO EXPRESS PEREMPTORY ORDER FOR SERVICE OF EXPERT EVIDENCE BUT CPR 3.9 APPLIED IN ANY EVENT

 In Dass –v- Dass the Defendant served its expert evidence extremely late.  It argued that it did not require relief from sanctions because there was no express sanction imposed for failing to serve expert evidence late.

11.       There was some debate between counsel as to the relevance and application of CPR 3.8 and 3.9, which are the relief from sanctions provisions, which were materially amended on 1st April 2013 following the Jackson recommendations. Mr Lynagh QC submits that this is not a relief from sanctions situation, because

(a) the original order of Master Foster did not include any sanctions and

(b) in any event, even if the Court was to re-open the decision of Master McCloud, the new tougher regime would not apply because of the transitional provisions.

The transitional provisions are set out in the Civil Procedure (Amendment) Rules 2013 at paragraph 22.2, and provide that the amendments made by Rule 5(f) and (g) of these rules:

“Do not apply to any application made before 1st April 2013 for relief from any sanction imposed for a failure to comply with any Rule, Practice Direction or Court Order.”

 12.       In my judgment, this is a relief from sanctions situation. CPR 35.13 provides:

“A party who fails to disclose an expert’s report may not use the report at trial or call the expert to give evidence orally unless the Court gives permission.”

 Where a party has failed to comply with an order that experts’ reports be disclosure by a particular time this triggers the automatic sanction under CPR 35.13. To prevent the sanction operating there has to be an application for an extension, which has not been made in this case.”

 THE DANGER OF “HIDDEN SANCTIONS”

 It is the “hidden” sanctions that pose the most problems for litigators.  Looking at three of the main stages of litigation

 DISCLOSURE

CPR 31.21 states:

A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission”.

WITNESS EVIDENCE

CPR 32.10 is clear

If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission”

EXPERT EVIDENCE

.We have already looked at the decision in Dass –v- Dass and the judge’s view that 35.13 meant that a party who did not file expert evidence  in time required permission of the court and that CPR 3.9 was the appropriate criteria. There is no express reference to time in 35.13 itself which states:

“A party who fails to disclose an expert’s report may not use the report at the trial or call the expert to give evidence orally unless the court gives permission.

 LOOKING AT THE MODEL DIRECTIONS

The Ministry of Justice model directions appear to make the position clear:

Warning:  you must comply with the terms imposed upon you by this order otherwise your case is liable to be struck out or some other sanction imposed. If you cannot comply you are expected to make formal application to the court before any deadline imposed upon you expires.”

SO WHEN DOES CPR 3.2 APPLY IN CONTRAST TO CPR 3.9?

At present the only safe and prudent answer to this is when the application for an extension of time is made before the time itself has lapsed.  It is dangerous to assume that because there is no express “unless” order in the directions or rules then you will not need to apply for relief from sanctions.

See the discussion of the relevant case law in relation to prospective applications at https://civillitigationbrief.wordpress.com/2013/12/22/surviving-mitchell-a-practitioners-guide-3-if-you-cannot-comply-with-a-rule-or-practice-direction-then-make-an-application-before-it-is-breached/

SUMMARY

  • It is not possible to give definitive guidance as to when an application for an extension of time was not governed by CPR 3.9 (and the Mitchell criteria) compared with an application under CPR 3.2.
  • The only safe advice if you cannot comply with an order is that an application should be made before the time for compliance has lapsed.  Such applications are covered by CPR 3.2. However there is no guarantee that the application will be granted.

RELATED POSTS

There are numerous posts relating to Mitchell and relief from sanctions.  The ones of particular relevance to the issues discussed here are:

7 comments

  1. […] (one of those involved in the Twitter discussion) has given us a thoughtful post on on this called Do you need to apply for relief from sanctions or an extension of time?). All one can say with any certainty is that the apparent certainty expressed in Mitchell is […]

  2. Clive Thomas · · Reply

    Can a party still rely on 2.11 CPR to agree a variation of the directions timetable with the other side?

    1. I am looking at this, in detail, in a future post. The basic answer is sometimes, but not always, so be very careful.

  3. Clive Thomas · · Reply

    Thanks very much – I look forward to reading your post. Will it be something you deal with in the Webinar on 29th Jan?

  4. Clive. It will be dealt with in the Webinar.

  5. […] (The “probably” in there reminds us of a point touched on in my second article – not every default involves sanctions and invokes Rule 3.9; on the other hand, the effect of Mitchell may arguably make every breach potentially sanctionable. And when I say “arguably”…. Let me refer you again to Gordon Exall’s article Do you need to apply for relief from sanctions or an extension of time?). […]

  6. So if you need an extension of time, and there is no obvious sanction beyond the standard warning in the model directions, to which you refer above, all you need to do to avoid the troublesome business of arguing rule 3.9 is issue an application to extend time before the deadline for doing something has expired and then make sure you do whatever it is you were ordered to do before your application is heard (and of course within the leisurely extension you sought for yourself): highly likely given the backlog of applications post-Mitchell? That way you will likely never have to address the nasty old business of rule 3.9? I am getting dim and distant deja-vu from before 1999. In fact, this is worse/easier than the position was pre-Woolf, because in the good (bad?) old days pre-Woolf, there was a special list for time summonses, so that applications for time were dealt with swiftly. As far as I know, there is no such list now.

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